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'Office Space' Actor Loses Lawsuit Over 'Flair'

The waiter in the film alleged that his face was used on merchandise without his consent.

Can an actor lose rights over his own face?

Well, it just happened on Thursday.

Todd Duffey, who portrayed the minor character of "Chotchkie's Waiter" in Office Space, sued 20th Century Fox Film over a licensing deal that ushered in an odd piece of merchandise -- a box set called the Office Space Box of Flair, which included a 32-page book and 15 "flair" buttons. The merchandise references a scene in the Mike Judge film where Jennifer Aniston's character is told by her boss at a restaurant that she is required to wear at least 15 pieces of "flair." Duffey was upset that the company, in an attempt to leverage this joke, had used his face on both the book's cover and one of the buttons. He claimed a false endorsement violation under the Lanham Act.

When agreeing to be in the movie, the actor signed a Day Player Agreement with Cubicle Inc., the film's production company. The contract granted Cubicle "all rights throughout the universe" to Duffey's performance, including the right to use pictures from his performance for commercial purposes in connection with the film.

U.S. District Judge J. Paul Oetken focuses on this contract rather than a SAG collective bargaining agreement after determining that Cubicle was not a party to the SAG agreement. Cubicle, though, did assign its rights to Fox.

Duffey's main line of defense was that although he granted Cubicle the right to use his image, that this didn't include consumer merchandise. The actor "argues that industry custom requires specific merchandising provisions to convey merchandising rights, but he fails to plead facts in support of any such custom," writes the judge in the ruling dismissing the lawsuit.

The judge isn't impressed with evidence of the supposed custom, saying a case from the '50s concerning James Dean and a couple of others isn't sufficient.

Does that mean that all actors are going to lose rights to their face as part of what they agree to when appearing in a film? Probably not. Some A-list actors have better bargaining power. Evidence of that comes from the agreement between Fox and the publishing company that came out with Office Space Box of Flair, suggesting that there were actors who were off-limits for merchandising purposes. "Perhaps Cubicle agreed that Jennifer Anniston could retain merchandising rights -- but that has little bearing on whether Cubicle agreed that Duffey could retain merchandising rights," writes the judge.

Judge Oetken concludes, "Duffey argues for an interpretation of the Day Player Agreement that is unreasonable. There is only one reasonable way to read the relevant terms: Duffey granted Cubicle all rights to images of his performance in Office Space, including the right to use his image on Office Space merchandise."